237 F.3d 1199 (10th Cir. 2001), 99-2281, US v. Grassie

Docket Nº:99-2281
Citation:237 F.3d 1199
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WALTER GENE GRASSIE, Defendant - Appellant.
Case Date:January 19, 2001
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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237 F.3d 1199 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee,


WALTER GENE GRASSIE, Defendant - Appellant.

No. 99-2281

United States Court of Appeals, Tenth Circuit

January 19, 2001


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Jill M. Wichlens, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the briefs), Denver, Colorado, for appellant.

Linda F. Thome, Department of Justice, Washington, D.C. (Norman C. Bay, United States Attorney, Albuquerque, New Mexico; Robert R. Gorence, Assistant United States Attorney, Albuquerque, New Mexico; Bill Lann Lee, Assistant Attorney General, Washington, D.C.; and Jessica Dunsay Silver, Department of Justice, Washington, D.C., with her on the brief), for appellee.

Before BALDOCK, ANDERSON, and BRORBY, Circuit Judges.

ANDERSON, Circuit Judge.

Walter Gene Grassie appeals his conviction and sentence, following a jury trial, on charges of burning down a church and defacing and damaging four churches belonging to The Church of Jesus Christ of Latter-day Saints ("LDS" or "Mormon" herein); and the arson of a truck. The church arson was charged under three separate statutes: felony destruction of a church by fire, because of the religious character of the property, in violation of 18 U.S.C. § 247 (Count I); arson of a building or vehicle used in any activity affecting interstate commerce, in violation of 18 U.S.C. § 844(i) (Count II); and, under 18 U.S.C. § 844(h)(1), a mandatory consecutive sentence of ten years for the commission of any federal felony by the use of fire or an explosive (Count III). The arson of the vehicle was charged under § 844(i) (Count X); and the vandalism of the four churches was charged as six separate misdemeanors under § 247 (Counts IV through IX). Mr. Grassie was sentenced to fifteen years imprisonment, restitution of $2,999,199.17 for the church damage and arson, and $1,316.74 for the vehicle arson, three years supervised release, and a special assessment of $550.

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Mr. Grassie raises the following issues on appeal. First, whether, as to the interstate commerce element of the charged offenses, the recent opinion of the Supreme Court in Jones v. United States, 120 S.Ct. 1904 (2000), either overruled law in this circuit, or established new law or analysis, which requires reversal of the convictions in this case because of, inter alia, (a) insufficient evidence on multiple factors relating to the interstate commerce requirement; (b) error in the jury instructions which permitted consideration of "any effect," rather than a "substantial effect" on interstate commerce; and (c) unconstitutionality of the statutes as applied. Second, in any event, whether the evidence was insufficient to support the jury's determination that the truck Grassie set on fire was used in an activity affecting interstate commerce. And, third, whether Grassie's conviction and sentence under both §§ 247 and 844(h)(1) for a single church arson constitutes cumulative punishment in violation of the Double Jeopardy Clause.

We exercise jurisdiction under 28 U.S.C. § 1291 and, for the reasons set out below, affirm.


Mr. Grassie does not dispute the jury's determination that he committed the charged acts, and did so intentionally, maliciously and, as to the churches, with anti-Mormon animus. Accordingly, we refer to only the central relevant facts.1

A. The Church Buildings

During May and June 1998, Mr. Grassie committed serial acts of vandalism and desecration of LDS church buildings in Roswell, Alamogordo, Alto and Artesia, New Mexico, ultimately setting fire to and completely destroying the church in Roswell. The damage ran into the millions of dollars.2 These acts are detailed more fully as follows.

On May 2, 1998, Mr. Grassie threw paint the color of blood (Tr. at 885) on two exterior brick walls of the church in Roswell, covering the church name sign. The individual in charge of maintenance recommended to the area maintenance supervisor in El Paso, Texas, various methods of abatement, including high steam jets, and hiring the use of the city's sodium blaster. Finally, the name sign had to be removed for renovation, and the bricks were sandblasted, damaging them. Traces of paint were still observable. All of the funds for repair and restoration were approved by the maintenance supervisor in El Paso, Texas, and the funds were paid through that office.

On May 22, 1998, Grassie returned to the Roswell church building and this time threw dark brown stain on the exterior walls. The name sign was still undergoing restoration off site.

On Monday, May 25, 1998, the Memorial Day holiday, Mr. Grassie attacked the LDS churches in both Alamogordo and Alto, New Mexico. In Alamogordo, he threw dark brown stain on three exterior walls of the church, and on the church name sign. He then broke a window, entered the church, and poured stain over the pulpit, and puddled stain inside the grand piano, over the strings, and on the outside, including the keyboard.

Grassie then proceeded to Alto, where he broke every window but one in the LDS church (twenty of twenty-one) and a glass door. He entered the church where, using a blunt object similar to a pipe, he smashed the pulpit, the organ, two pianos,

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multiple doors, which also had knobs broken off, and overturned a computer. Keys from the pianos and organ were beaten off and scattered on the floor, the legs and front of a piano were broken and beaten off, and both pianos were overturned.

The following day, May 26, 1998, Grassie returned a third time to the Roswell church. He broke in and, using a sharp-edged tool similar to a machete, he hacked up the pews, organ, grand piano, and three other pianos located throughout the building, scattering keys on the floor. He chopped the gym floor in the cultural hall, a table top, and items in the kitchen. He also damaged a computer in the family history center, and multiple doors, chopping them and knocking off knobs. He damaged the water fountain, then turned on the water in the baptismal font and broke the faucet off to keep the water running, resulting in flooding down the hallway and into the family history center, leaving film and other library materials floating in water.

On May 26, Grassie then proceeded to the town of Artesia where he attacked the LDS church in that town. Using a sharp-edged instrument, he hacked up the organ, two pianos, pulpits and doors, again knocking knobs off. He desecrated the sacrament table, broke the church's floor-to-ceiling window, knocked a hole in the wall in the office area, damaged electronic equipment in the offices, smashed the light fixture in the foyer, and damaged the water fountain. He then turned on both faucets in the baptismal font and left them running.

Finally, on June 28, Grassie returned for a fourth time to the Roswell church. In the middle of the night he climbed onto a flat roof, poked out a window, poured gasoline down the interior wall and onto the floor of the chapel, and ignited it. The church burned the rest of the night. It was completely destroyed, leaving only some exterior brick walls standing.

The LDS church building in Roswell was the only one in town. Id. at 467, 480. The church members comprised two wards (congregations of up to 300 members each) which shared the Roswell church building. Id. at 467, 1196. In addition, the building was a stake center (stakes are comprised of a number of wards) for the wards in Clovis, Portales, Lovington, Hobbs, Carlsbad, Artesia, and Roswell. Id. at 458-59. The stake president, high council, stake financial clerk and other stake positions had offices in the building and members from the six cities outside Roswell, listed above, traveled to the building for meetings of members of the stake. Id. at 263, 458-59, 463, 482. The wards using the buildings in Alamogordo and Alto were in another stake, administered from another city. Id. at 458-59.

Among other things, the church building in Roswell contained a chapel, multi-cultural hall (including a gymnasium for basketball and other social and recreational activities), classrooms for religious instruction, nursery, kitchen, relief society (women's organization) room, library containing equipment and teaching materials, baptismal center, primary (children's) room, high council room, multiple offices for the bishops and officers administering the affairs of each ward, offices for the stake president, and a family history center for genealogy work. The offices of the bishop and stake president contained computers and other electronic equipment, telephones used for local and long distance calls (id. at 670), and other things related to administration, including, by inference, membership, financial and other records. The family history center, comprising two rooms, contained computers, films, microfiche, microfilm readers, and other information and equipment. Id. at 610, 637-38, 643.

After the destruction of the Roswell church, the members had no comparable facilities to use for their many activities. They were reduced to renting space in two buildings. Id. at 239-40.

The LDS churches in Alamogordo, Alto and Artesia had similar functions and spaces, with the exception of stake offices,

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which were in Roswell. As was the case in Roswell, the churches in Alamogordo, Alto and Artesia were the only ones in town, and the members in those cities were dependent upon those buildings for all their activities.

As defense counsel acknowledged, the LDS church has more activities in its buildings than most churches. Id. at 1197-99...

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